OCTOBER TERM, 1991
certiorari to the supreme court of florida
No. 91-5843. Argued March 2, 1992—Decided June 8, 1992
After a Florida jury found petitioner Sochor guilty of capital murder, the jury was instructed at the penalty hearing on the possibility of finding four aggravating factors, including the State's "heinousness" and "coldness" factors. The jury was also charged with weighing any mitigating circumstances it might find against the aggravating ones in reaching an advisory verdict as to whether Sochor's sentence should be life imprisonment or death. The jury's recommendation of death was adopted by the trial court, which found all four aggravating circumstances defined in the jury instructions and no mitigating circumstances. The State Supreme Court held, among other things, that the question whether the jury instruction on the heinousness factor was unconstitutionally vague had been waived for failure to object. The court also held that the evidence failed to support the trial judge's finding of the coldness factor, but nevertheless affirmed the death sentence.
Held: 1. The application of the heinousness factor to Sochor did not result in reversible error. Pp. 532-537. (a) In a weighing State like Florida, Eighth Amendment error occurs when the sentencer weighs an "invalid" aggravating factor in reaching the decision to impose a death sentence. See Clemons v. Mississippi, 494 U. S. 738, 752. While federal law does not require the state appellate court reviewing such error to remand for resentencing, the court must, short of remand, either itself reweigh without the invalid aggravating factor or determine that weighing the invalid factor was harmless error. See, e. g., Parker v. Dugger, 498 U. S. 308, 321. P. 532. (b) This Court lacks jurisdiction to address Sochor's claim that the jury instruction on the heinousness factor was unconstitutionally vague. The State Supreme Court indicated with requisite clarity that its rejection of the claim was based on an alternative state ground, see, e. g., Michigan v. Long, 463 U. S. 1032, 1041, and Sochor has said nothing to persuade the Court that this state ground is either not adequate or not independent, see Herb v. Pitcairn, 324 U. S. 117, 125-126. Pp. 533-534. (c) No Eighth Amendment violation occurred when the trial judge weighed the heinousness factor. Although the State Supreme Court's recent decisions may have evinced inconsistent and overbroad constructions of the heinousness factor that leave trial judges without sufficient
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